Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

MEMORANDUM^** 

Appellant Tommie Stewart, an inmate at Washington State Penitentiary, appeals a grant of summary judgment in favor of appellees, state officials, in his 42 U.S.C. § 1983 action. We affirm.

FACTS

This case arose from a search of Stewart's cell in 1979. After placing the prison on lockdown status, prison officials conducted an institution-wide "shakedown"--a search of the entire facility. While searching Stewart's cell, officers confiscated some of his property, which appellant now claims was never returned to him.

In October 1979, Stewart filed an administrative tort claim with the state, which was denied. He then filed a pro se Sec. 1983 complaint alleging a number of constitutional violations arising from the search and alleged confiscation of his property without a predeprivation hearing. The district court granted summary judgment to appellees. Stewart timely appealed.

DISCUSSION

We review grants of summary judgment de novo, Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986), and will affirm if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 106 S. Ct. 2505, 2510 (1986).

Stewart argues that his fourth, eighth and fourteenth amendment rights were violated when officers searched his cell and confiscated some of his property. We find that he cannot prevail on any of these claims.

A prisoner has no recognized expectation of privacy in his prison cell under the fourth amendment. Hudson v. Palmer, 468 U.S. 517, 530 (1984). Stewart cannot therefore allege that the search violated his fourth amendment rights.

Under the eighth amendment, the obligation of a prison to its prisoners is at an end if it furnishes adequate food, clothing, sanitation, medical care and personal safety. Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Stewart's allegations of an unlawful deprivation of property do not make out an eighth amendment claim.

Stewart's final cognizable constitutional argument is that prison officials intentionally confiscated his property without due process. In Hudson v. Palmer, the Supreme Court extended the rule of Parratt v. Taylor, 451 U.S. 527 (1981), to intentional deprivation of a prisoner's property by a state employee resulting from a random, unauthorized act and not from some established State procedure. So long as there exists "some meaningful means by which to assess the propriety of the State's action at some point after the initial taking," Parratt, 451 U.S. at 539, due process does not require a predeprivation hearing. Hudson, 468 U.S. at 533. "The controlling inquiry is solely whether the state is in a position to provide for predeprivation process." Id. at 534.

Stewart has not alleged that any established State procedure was involved. Although the search and removal of contraband resulted from a planned, prison-wide shakedown several months in the making, there is no allegation that illegal confiscation was planned. There is no evidence that such conduct, even if intentional, resulted from established State procedure, and it was therefore "impracticable or impossible for the state to provide predeprivation process because the governmental machinery [could not] foresee or predict" the later loss of his property. Bretz v. Kelman, 773 F.2d 1026, 1030 (9th Cir. 1985) (en banc).

Since Stewart did not demonstrate that his loss arose from set State procedure, due process is satisfied if the State offers an adequate postdeprivation remedy. Stewart first filed an administrative tort claim for compensation with the Washington State risk management office under Wash.Rev.Code Ann. Sec. 4.92.110. Although his claim was denied, it is apparent the state investigated and its records show that eventually the property was returned and receipted for by Stewart. If he disagreed, he still could have filed a civil action against the State under sections 4.92.090 and 4.92.100. Since Washington plainly has provided Stewart a meaningful postdeprivation remedy, Stewart has received due process and the district court properly granted summary judgment for the defendants.

Stewart maintains that the district court erred when it denied his motion to compel production of certain documents. This argument is meritless because the facts Stewart sought to discover would not have precluded summary judgment. Cf. B.R.S. Land Investors v. United States, 596 U.S. 353, 356 (9th Cir. 1979) (per curiam) (district court may deny discovery motion where convinced plaintiff will be unable to state claim for relief).

Stewart contends that the district court erred in relying on the defendants' affidavits as a basis for granting summary judgment. He claims the defendants described events in their affidavits as to which they had no personal knowledge, in violation of Fed. R. Civ. P. 56(e). Having failed to move to strike the allegedly defective affidavits, however, he has waived any objection to them. Allen v. Scribner, 812 F.2d 426, 435 n. 18 (9th Cir.), amended on other grounds, 828 F.2d 1445 (9th Cir. 1987).

Stewart further claims that the district court erred in relying solely on the affidavits. But affidavits of a moving party may be used to demonstrate the lack of any genuine issues of fact. Fed. R. Civ. P. 56(c), Celotex Corp. v. Cattrett, 106 S. Ct. 2548, 2553 (1986). A party opposing summary judgment must set forth specific facts genuinely at issue. Since Stewart failed to do so, the district court properly relied on the defendants' affidavits. Celotex, 106 S. Ct. at 2553-54.

Accordingly, the district court's grant of summary judgment is

AFFIRMED.